Habitat conservation plans under the Endangered Species Act

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U.S. Fish & Wildlife Service
Habitat Conservation Plans
Under the Endangered
Species Act
Introduction
Why should we save endangered
species? Congress answered this
question in the introduction to the
Endangered Species Act of 1973
(Act), recognizing that endangered
and threatened species of wildlife
and plants “are of esthetic, ecological,
educational, historical, recreational,
and scientific value to the Nation and
its people.”
After this finding, Congress said
that the purposes of the Act are “.
. . to provide a means whereby the
ecosystems upon which endangered
species and threatened species depend
may be conserved [and] to provide a
program for the conservation of such .
. . species. . . .” Habitat Conservation
Plans (HCPs) under section 10(a)(1)(B)
of the Act provide for partnerships with
non-Federal parties to conserve the
ecosystems upon which listed species
depend, ultimately contributing to their
recovery.
What are HCPs?
HCPs are planning documents
required as part of an application for an
incidental take permit. They describe
the anticipated effects of the proposed
taking; how those impacts will be
minimized, or mitigated; and how the
HCP is to be funded.
HCPs can apply to both listed and
nonlisted species, including those that
are candidates or have been proposed
for listing. Conserving species before
they are in danger of extinction or are
likely to become so can also provide
early benefits and prevent the need for
listing.
Who needs an incidental take permit?
Anyone whose otherwise-lawful
activities will result in the “incidental
take” of a listed wildlife species needs
a permit. The U.S. Fish and Wildlife
Service (FWS) can help determine
whether a proposed project or action is
likely to result in “take” and whether
an HCP is needed. FWS staff can
also provide technical assistance to
help design a project to avoid take.
For example, the project could be
designed with seasonal restrictions on
construction to minimize disturbance to
a species.
What is the benefit of an incidental
take permit and habitat conservation
plan to a private landowner?
The permit allows the permit-holder
to legally proceed with an activity that
would otherwise result in the unlawful
take of a listed species. The permit-holder
also has assurances from the
FWS through the “No Surprises”
regulation.
What is “take”?
The Act defines “take” as “. . . to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect,
or to attempt to engage in any such
conduct.” “Harm” includes significant
habitat modification that actually kills
or injures a listed species through
impairing essential behavior such as
breeding, feeding, or sheltering.
Section 9 of the Act prohibits the
take of endangered and threatened
species. The purpose of the incidental
take permit is to exempt non-Federal
permit-holders—such as States
and private landowners— from
the prohibitions of section 9, not to
authorize the activities that result in
take.
What do habitat conservation plans
do?
In developing habitat conservation
plans, people applying for incidental
take permits describe measures
designed to minimize and mitigate the
effects of their actions— to ensure
that species will be conserved and to
contribute to their recovery.
Habitat conservation plans are
required to meet the permit issuance
criteria of section 10(a)(2)(B) of the Act:
• (i) taking will be incidental;
• (ii) the applicant will, to the
maximum extent practicable,
minimize and mitigate the impacts of
the taking;
The endangered California tiger salamander is among the listed species included in the
East Contra Costa County Habitat Conservation Plan.
John Cleckler/USFWS
• (iii) the applicant will ensure that
adequate funding for the plan will be
provided;
• (iv) taking will not appreciably
reduce the likelihood of the survival
and recovery of the species in the
wild; and
• (v) other measures, as required by
the Secretary, will be met.
What needs to be in HCPs?
Section 10 of the Act and its
implementing regulations define the
contents of HCPs. They include:
• an assessment of impacts likely to
result from the proposed taking of
one or more federally listed species.
• measures that the permit applicant
will undertake to monitor, minimize,
and mitigate for such impacts, the
funding available to implement such
measures, and the procedures to deal
with unforeseen or extraordinary
circumstances.
• alternative actions to the taking
that the applicant analyzed, and the
reasons why the applicant did not
adopt such alternatives.
• additional measures that the Fish
and Wildlife Service may require.
HCPs are also required to comply with
the Five Points Policy by including:
1. biological goals and objectives,
which define the expected biological
outcome for each species covered by
the HCP;
2. adaptive management, which
includes methods for addressing
uncertainty and also monitoring
and feedback to biological goals and
objectives;
3. monitoring for compliance,
effectiveness, and effects;
4. permit duration which is determined
by the time-span of the project and
designed to provide the time needed
to achieve biological goals and
address biological uncertainty; and
5. public participation according to the
National Environmental Policy Act.
What are “No Surprises” assurances?
The FWS provides “No Surprises”
assurances to non-Federal landowners
through the section 10(a)(1)(B)
process. Essentially, State and
private landowners are assured
that if “unforeseen circumstances”
arise, the FWS will not require the
commitment of additional land, water,
or financial compensation or additional
restrictions on the use of land, water,
or other natural resources beyond the
level otherwise agreed to in the HCP
without the consent of the permit-holder.
The government will honor
these assurances as long as permit-holders
are implementing the terms
and conditions of the HCPs, permits,
and other associated documents in good
faith. In effect, the government and
permit-holders pledge to honor their
conservation commitments.
Are incidental take permits needed for
listed plants?
There are no Federal prohibitions
under the Act for the take of listed
plants on non-Federal lands, unless
taking those plants is in violation of
State law. However, the FWS analyzes
the effects of the permit on listed plant
species because section 7 of the Act
requires that issuing an incidental take
permit may not jeopardize any listed
species, including plants. In general, it
is a good idea to include conservation
measures for listed plant species in
developing an HCP.
What is the process for getting an
incidental take permit?
The applicant decides whether to
seek an incidental take permit. While
FWS staff members provide detailed
guidance and technical assistance
throughout the process, the applicant
develops an HCP and applies for
a permit. The components of a
completed permit application are a
standard application form, an HCP,
an Implementation Agreement (if
applicable), the application fee, and a
draft National Environmental Policy
Act (NEPA) analysis. A NEPA analysis
may result in a categorical exclusion,
an environmental assessment, or an
environmental impact statement.
While processing the permit
application, the FWS prepares the
incidental take permit and a biological
opinion under section 7 of the Act and
finalizes the NEPA analysis documents.
Consequently, incidental take
permits have a number of associated
documents.
How do we know if we have listed
species on our project site?
For assistance, check with the
appropriate State fish and wildlife
agency, the nearest FWS field office, or
the National Marine Fisheries Service
(NMFS), for anadromous fish such as
salmon.
What kinds of actions are considered
mitigation?
Mitigation measures are actions that
reduce or address potential adverse
effects of a proposed activity on species
included in an HCP. They should
address specific conservation needs
of the species and be manageable and
enforceable. Mitigation measures
may take many forms, including,
but not limited to, payment into an
established conservation fund or
bank; preservation (via acquisition or
conservation easement) of existing
habitat; enhancement or restoration
of degraded or a former habitat;
establishment of buffer areas around
existing habitats; modifications of
land use practices, and restrictions
on access. Which type of mitigation
measure used for a specific HCP is
determined on a case by case basis, and
is based upon the needs of the species
and type of impacts anticipated.
What is the legal commitment of a
HCP?
Incidental take permits make binding
the elements of HCPs. While incidental
take permits have expiration dates,
the identified mitigation may be in
perpetuity. Violating the terms of an
incidental take permit may constitute
unlawful take under section 9 of the
Act.
Who approves an HCP?
The FWS Regional Director decides
whether to issue an incidental take
permit, based on whether the HCP
meets the criteria mentioned above.
If the HCP addresses all of the
requirements listed above, as well as
those of other applicable laws, the FWS
issues the permit.
What other laws besides the
Endangered Species Act are involved?
In issuing incidental take permits, the
FWS complies with the requirements
of NEPA and all other statutes and
regulations, including State and local
environmental/planning laws.
Who is responsible for NEPA
compliance during the HCP process?
The FWS is responsible for ensuring
NEPA compliance during the HCP
process. However, if the Service does
not have sufficient staff resources,
an applicant may, within certain
limitations, prepare the draft NEPA
analysis. Doing so can benefit the
applicant and the government by
expediting the application process and
permit issuance. In cases like this, the
FWS provides guidance, reviews the
document, and takes responsibility for its
scope, adequacy, and content.
Does the public get to comment on our
HCP? How do public comments affect
our HCP?
The Act requires a 30-day period for
public comments on applications for
incidental take permits. In addition,
because NEPA requires public comment
on certain documents, the FWS operates
the two comment periods concurrently.
Generally, the comment period is 30
days for a Low Effect HCP, 60 days for
an HCP that requires an environmental
assessment, and 90 days for an HCP
that requires an environmental impact
statement. The FWS considers public
comments in permit decisions.
What kind of monitoring is required for
a HCP, and who performs it?
Three types of monitoring may be
required: compliance, effectiveness, and
effects. In general, the permit-holder
is responsible for ensuring that all the
required monitoring occurs. The FWS
reviews the monitoring reports and
coordinates with the permit-holder if any
action is needed.
Does the Fish and Wildlife Service
try to accommodate the needs of HCP
participants who are not professionally
involved in the issues?
Because applicants develop HCPs,
the actions are considered private
and, therefore, not subject to public
participation or review until the FWS
receives an official application. The FWS
is committed to working with people
applying for permits and providing
technical assistance throughout the
process to accommodate their needs.
However, the FWS does encourage
applicants to involve a range of parties,
a practice that is especially valuable
for complex and controversial projects.
Applicants for most large-scale, regional
HCPs choose to provide extensive
opportunities for public involvement
during the planning process. Issuing
permits is, however, a Federal action
that is subject to public review and
comment. There is time for such review
during the period when the FWS
reviews the information. In addition,
the FWS solicits public involvement and
review, as well as requests for additional
information during the scoping process
when an EIS is required.
Are independent scientists involved in
developing an HCP?
The views of independent scientists are
important in developing mitigation and
minimization measures in nearly all
HCPs. In many cases, applicants contact
experts who are directly involved in
discussions on the adequacy of possible
mitigation and minimization measures.
In other cases, the FWS incorporates
the views of independent scientists
indirectly through their participation in
listing documents, recovery plans, and
conservation agreements that applicants
reference in developing their HCPs.
How does the FWS ensure that species
are adequately protected in HCPs?
The FWS has strengthened the HCP
process by incorporating adaptive
management when there are species for
which additional scientific information
may be useful during the implementation
of the HCP. These provisions allow FWS
and NMFS to work with landowners
to reach agreement on changes in
mitigation strategies within the HCP
area, if new information about the
species indicates this is needed. During
the development of HCPs, the FWS and
NMFS discuss any changes in strategy
with landowners, so that they are aware
of any uncertainty in management
strategies and have concurred with the
adaptive approaches outlined.
What will the FWS do in the event of
unforeseen circumstances that may
jeopardize the species?
The FWS will use its authority to
manage any unforeseen circumstances
that may arise to ensure that species are
not jeopardized as a result of approved
HCPs. In the rare event that jeopardy to
the species cannot be avoided, the FWS
may be required to revoke the permit.
How can I obtain information on
numbers and types of HCPs?
Our national HCP database displaying
basic statistics on HCPs is available
online from our Habitat Conservation
Planning page at http://ecos.fws.
gov/conserv_plans/servlet/gov.doi.hcp.
servlets.PlanReportSelect?region=9&ty
pe=HCP.
U. S. Fish and Wildlife Service
Endangered Species Program
4401 N. Fairfax Drive, Room 420
Arlington, VA 22203
703-358-2171
http://www.fws.gov/endangered/what-we-
do/hcp-overview.html
April 2011

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U.S. Fish & Wildlife Service
Habitat Conservation Plans
Under the Endangered
Species Act
Introduction
Why should we save endangered
species? Congress answered this
question in the introduction to the
Endangered Species Act of 1973
(Act), recognizing that endangered
and threatened species of wildlife
and plants “are of esthetic, ecological,
educational, historical, recreational,
and scientific value to the Nation and
its people.”
After this finding, Congress said
that the purposes of the Act are “.
. . to provide a means whereby the
ecosystems upon which endangered
species and threatened species depend
may be conserved [and] to provide a
program for the conservation of such .
. . species. . . .” Habitat Conservation
Plans (HCPs) under section 10(a)(1)(B)
of the Act provide for partnerships with
non-Federal parties to conserve the
ecosystems upon which listed species
depend, ultimately contributing to their
recovery.
What are HCPs?
HCPs are planning documents
required as part of an application for an
incidental take permit. They describe
the anticipated effects of the proposed
taking; how those impacts will be
minimized, or mitigated; and how the
HCP is to be funded.
HCPs can apply to both listed and
nonlisted species, including those that
are candidates or have been proposed
for listing. Conserving species before
they are in danger of extinction or are
likely to become so can also provide
early benefits and prevent the need for
listing.
Who needs an incidental take permit?
Anyone whose otherwise-lawful
activities will result in the “incidental
take” of a listed wildlife species needs
a permit. The U.S. Fish and Wildlife
Service (FWS) can help determine
whether a proposed project or action is
likely to result in “take” and whether
an HCP is needed. FWS staff can
also provide technical assistance to
help design a project to avoid take.
For example, the project could be
designed with seasonal restrictions on
construction to minimize disturbance to
a species.
What is the benefit of an incidental
take permit and habitat conservation
plan to a private landowner?
The permit allows the permit-holder
to legally proceed with an activity that
would otherwise result in the unlawful
take of a listed species. The permit-holder
also has assurances from the
FWS through the “No Surprises”
regulation.
What is “take”?
The Act defines “take” as “. . . to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect,
or to attempt to engage in any such
conduct.” “Harm” includes significant
habitat modification that actually kills
or injures a listed species through
impairing essential behavior such as
breeding, feeding, or sheltering.
Section 9 of the Act prohibits the
take of endangered and threatened
species. The purpose of the incidental
take permit is to exempt non-Federal
permit-holders—such as States
and private landowners— from
the prohibitions of section 9, not to
authorize the activities that result in
take.
What do habitat conservation plans
do?
In developing habitat conservation
plans, people applying for incidental
take permits describe measures
designed to minimize and mitigate the
effects of their actions— to ensure
that species will be conserved and to
contribute to their recovery.
Habitat conservation plans are
required to meet the permit issuance
criteria of section 10(a)(2)(B) of the Act:
• (i) taking will be incidental;
• (ii) the applicant will, to the
maximum extent practicable,
minimize and mitigate the impacts of
the taking;
The endangered California tiger salamander is among the listed species included in the
East Contra Costa County Habitat Conservation Plan.
John Cleckler/USFWS
• (iii) the applicant will ensure that
adequate funding for the plan will be
provided;
• (iv) taking will not appreciably
reduce the likelihood of the survival
and recovery of the species in the
wild; and
• (v) other measures, as required by
the Secretary, will be met.
What needs to be in HCPs?
Section 10 of the Act and its
implementing regulations define the
contents of HCPs. They include:
• an assessment of impacts likely to
result from the proposed taking of
one or more federally listed species.
• measures that the permit applicant
will undertake to monitor, minimize,
and mitigate for such impacts, the
funding available to implement such
measures, and the procedures to deal
with unforeseen or extraordinary
circumstances.
• alternative actions to the taking
that the applicant analyzed, and the
reasons why the applicant did not
adopt such alternatives.
• additional measures that the Fish
and Wildlife Service may require.
HCPs are also required to comply with
the Five Points Policy by including:
1. biological goals and objectives,
which define the expected biological
outcome for each species covered by
the HCP;
2. adaptive management, which
includes methods for addressing
uncertainty and also monitoring
and feedback to biological goals and
objectives;
3. monitoring for compliance,
effectiveness, and effects;
4. permit duration which is determined
by the time-span of the project and
designed to provide the time needed
to achieve biological goals and
address biological uncertainty; and
5. public participation according to the
National Environmental Policy Act.
What are “No Surprises” assurances?
The FWS provides “No Surprises”
assurances to non-Federal landowners
through the section 10(a)(1)(B)
process. Essentially, State and
private landowners are assured
that if “unforeseen circumstances”
arise, the FWS will not require the
commitment of additional land, water,
or financial compensation or additional
restrictions on the use of land, water,
or other natural resources beyond the
level otherwise agreed to in the HCP
without the consent of the permit-holder.
The government will honor
these assurances as long as permit-holders
are implementing the terms
and conditions of the HCPs, permits,
and other associated documents in good
faith. In effect, the government and
permit-holders pledge to honor their
conservation commitments.
Are incidental take permits needed for
listed plants?
There are no Federal prohibitions
under the Act for the take of listed
plants on non-Federal lands, unless
taking those plants is in violation of
State law. However, the FWS analyzes
the effects of the permit on listed plant
species because section 7 of the Act
requires that issuing an incidental take
permit may not jeopardize any listed
species, including plants. In general, it
is a good idea to include conservation
measures for listed plant species in
developing an HCP.
What is the process for getting an
incidental take permit?
The applicant decides whether to
seek an incidental take permit. While
FWS staff members provide detailed
guidance and technical assistance
throughout the process, the applicant
develops an HCP and applies for
a permit. The components of a
completed permit application are a
standard application form, an HCP,
an Implementation Agreement (if
applicable), the application fee, and a
draft National Environmental Policy
Act (NEPA) analysis. A NEPA analysis
may result in a categorical exclusion,
an environmental assessment, or an
environmental impact statement.
While processing the permit
application, the FWS prepares the
incidental take permit and a biological
opinion under section 7 of the Act and
finalizes the NEPA analysis documents.
Consequently, incidental take
permits have a number of associated
documents.
How do we know if we have listed
species on our project site?
For assistance, check with the
appropriate State fish and wildlife
agency, the nearest FWS field office, or
the National Marine Fisheries Service
(NMFS), for anadromous fish such as
salmon.
What kinds of actions are considered
mitigation?
Mitigation measures are actions that
reduce or address potential adverse
effects of a proposed activity on species
included in an HCP. They should
address specific conservation needs
of the species and be manageable and
enforceable. Mitigation measures
may take many forms, including,
but not limited to, payment into an
established conservation fund or
bank; preservation (via acquisition or
conservation easement) of existing
habitat; enhancement or restoration
of degraded or a former habitat;
establishment of buffer areas around
existing habitats; modifications of
land use practices, and restrictions
on access. Which type of mitigation
measure used for a specific HCP is
determined on a case by case basis, and
is based upon the needs of the species
and type of impacts anticipated.
What is the legal commitment of a
HCP?
Incidental take permits make binding
the elements of HCPs. While incidental
take permits have expiration dates,
the identified mitigation may be in
perpetuity. Violating the terms of an
incidental take permit may constitute
unlawful take under section 9 of the
Act.
Who approves an HCP?
The FWS Regional Director decides
whether to issue an incidental take
permit, based on whether the HCP
meets the criteria mentioned above.
If the HCP addresses all of the
requirements listed above, as well as
those of other applicable laws, the FWS
issues the permit.
What other laws besides the
Endangered Species Act are involved?
In issuing incidental take permits, the
FWS complies with the requirements
of NEPA and all other statutes and
regulations, including State and local
environmental/planning laws.
Who is responsible for NEPA
compliance during the HCP process?
The FWS is responsible for ensuring
NEPA compliance during the HCP
process. However, if the Service does
not have sufficient staff resources,
an applicant may, within certain
limitations, prepare the draft NEPA
analysis. Doing so can benefit the
applicant and the government by
expediting the application process and
permit issuance. In cases like this, the
FWS provides guidance, reviews the
document, and takes responsibility for its
scope, adequacy, and content.
Does the public get to comment on our
HCP? How do public comments affect
our HCP?
The Act requires a 30-day period for
public comments on applications for
incidental take permits. In addition,
because NEPA requires public comment
on certain documents, the FWS operates
the two comment periods concurrently.
Generally, the comment period is 30
days for a Low Effect HCP, 60 days for
an HCP that requires an environmental
assessment, and 90 days for an HCP
that requires an environmental impact
statement. The FWS considers public
comments in permit decisions.
What kind of monitoring is required for
a HCP, and who performs it?
Three types of monitoring may be
required: compliance, effectiveness, and
effects. In general, the permit-holder
is responsible for ensuring that all the
required monitoring occurs. The FWS
reviews the monitoring reports and
coordinates with the permit-holder if any
action is needed.
Does the Fish and Wildlife Service
try to accommodate the needs of HCP
participants who are not professionally
involved in the issues?
Because applicants develop HCPs,
the actions are considered private
and, therefore, not subject to public
participation or review until the FWS
receives an official application. The FWS
is committed to working with people
applying for permits and providing
technical assistance throughout the
process to accommodate their needs.
However, the FWS does encourage
applicants to involve a range of parties,
a practice that is especially valuable
for complex and controversial projects.
Applicants for most large-scale, regional
HCPs choose to provide extensive
opportunities for public involvement
during the planning process. Issuing
permits is, however, a Federal action
that is subject to public review and
comment. There is time for such review
during the period when the FWS
reviews the information. In addition,
the FWS solicits public involvement and
review, as well as requests for additional
information during the scoping process
when an EIS is required.
Are independent scientists involved in
developing an HCP?
The views of independent scientists are
important in developing mitigation and
minimization measures in nearly all
HCPs. In many cases, applicants contact
experts who are directly involved in
discussions on the adequacy of possible
mitigation and minimization measures.
In other cases, the FWS incorporates
the views of independent scientists
indirectly through their participation in
listing documents, recovery plans, and
conservation agreements that applicants
reference in developing their HCPs.
How does the FWS ensure that species
are adequately protected in HCPs?
The FWS has strengthened the HCP
process by incorporating adaptive
management when there are species for
which additional scientific information
may be useful during the implementation
of the HCP. These provisions allow FWS
and NMFS to work with landowners
to reach agreement on changes in
mitigation strategies within the HCP
area, if new information about the
species indicates this is needed. During
the development of HCPs, the FWS and
NMFS discuss any changes in strategy
with landowners, so that they are aware
of any uncertainty in management
strategies and have concurred with the
adaptive approaches outlined.
What will the FWS do in the event of
unforeseen circumstances that may
jeopardize the species?
The FWS will use its authority to
manage any unforeseen circumstances
that may arise to ensure that species are
not jeopardized as a result of approved
HCPs. In the rare event that jeopardy to
the species cannot be avoided, the FWS
may be required to revoke the permit.
How can I obtain information on
numbers and types of HCPs?
Our national HCP database displaying
basic statistics on HCPs is available
online from our Habitat Conservation
Planning page at http://ecos.fws.
gov/conserv_plans/servlet/gov.doi.hcp.
servlets.PlanReportSelect?region=9&ty
pe=HCP.
U. S. Fish and Wildlife Service
Endangered Species Program
4401 N. Fairfax Drive, Room 420
Arlington, VA 22203
703-358-2171
http://www.fws.gov/endangered/what-we-
do/hcp-overview.html
April 2011